Rooty Hill Medical Centre v Gunther - [2002] NSWCA 60

CITATION: Rooty Hill Medical Centre v Gunther [2002] NSWCA 60

FILE NUMBER(S): CA 41026/00

HEARING DATE(S): 25 February 2002

JUDGMENT DATE:
11 March 2002

PARTIES :

Rooty Hill Medical Centre Pty Limited & Anor
v
Michael Gunther

JUDGMENT OF: Mason P at 1; Handley JA at 2; Hodgson JA at 36

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 1377/99

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

COUNSEL: Appellants - M J Windsor
Respondent - S Norton SC/A P Healey

SOLICITORS: Appellants - David Ian Brown, Sydney
Respondent - Brydens Law Office, Liverpool

CATCHWORDS: VICARIOUS LIABILITY - master and servant relationship - non-delegable duty - DAMAGES - Workers Compensation Act - lump sum compensation - future weekly compensation

LEGISLATION CITED: Workers Compensation Act 1987 (NSW)
Employees Liability Act 1991
Medical Practice Act 1992

CASES CITED:
Kempsey District Hospital v Thackham (1995) 36 NSWLR 492
Commercial Union Assurance Company of Australia v Ferrcom Pty Limited (1991) 22 NSWLR 389
Smith v Chadwick (1884) 9 App Cas 187
Kondis v The State Transport Authority (1984) 154 CLR 672
Kornjaca v Steel Mains Pty Ltd [1974] 1 NSWLR 343
Hood Constructions Pty Limited v Nicholas (1987) 9 NSWLR 60
Transfield Pty Limited v Mastrioanni (1998) 20 NSW CCR 193 (CA)
Franklins Self Service Pty Limited v Wyber (1999) 48 NSWLR 249

DECISION: Appeal allowed - orders made

41026/00
DC 1377/99

MASON P
HANDLEY JA
HODGSON JA
11 March 2002

ROOTY HILL MEDICAL CENTRE PTY LTD & ANOR

v MICHAEL GUNTHER

VICARIOUS LIABILITY – master and servant relationship – non-delegable duty

DAMAGES – Workers Compensation Act – lump sum compensation – future weekly compensation

The plaintiff suffered a cut to a finger whilst at a TAFE College. As a consequence of negligent medical treatment and advice the plaintiff suffered a ruptured tendon in the injured finger whilst at work. The trial Judge found the Rooty Hill Medical Centre liable for the negligence of the treating doctor. A credit of $37,094 was allowed for workers’ compensation payments by the plaintiff’s employer but no allowance was made for the worker’s other compensation entitlements.

The appellant company submitted that there was no evidence to support a master-servant relationship with the treating doctor or the existence of a non-delegable duty. Both appellants submitted that the Judge should have reduced the damages for amounts payable under ss 66 and 67 (lump sum compensation) and s 40 (future weekly compensation) of the Workers Compensation Act 1987 (NSW).
HELD : (1) The appeal by the company on liability must fail. The evidence supported the inference that the company either employed the doctor or undertook to provide medical services to persons attending the medical centre. As there was no evidence to the contrary for the defendants, the company owed a non-delegable duty and was liable for any breach of duty by the doctor. (2) Section 151Z of the Workers Compensation Act did not apply but the damages had to be reduced to give effect to the overriding intention…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWCA 60
Decision Date: 11 March 2002

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered the appeal of Rooty Hill Medical Centre against a decision concerning the liability of the medical centre for the actions of a doctor. The dispute arose from injuries sustained by Dr. Gunther, who alleged that the medical centre was vicariously liable for the negligence of another doctor, Dr. Smith, and that the medical centre owed him a non-delegable duty of care.

The primary legal issues before the court were whether the medical centre was vicariously liable for the conduct of Dr. Smith, and whether the medical centre owed Dr. Gunther a non-delegable duty of care in relation to the services provided by other medical practitioners at the centre. The court also considered the implications of the *Workers Compensation Act* regarding lump sum and future weekly compensation in the context of the damages awarded.

The court reasoned that the relationship between the medical centre and Dr. Smith was not one of employment, but rather an independent contractor arrangement. Consequently, the medical centre could not be held vicariously liable for Dr. Smith's negligence. However, the court found that the medical centre did owe Dr. Gunther a non-delegable duty of care to ensure that the services provided by medical practitioners at the centre were carried out with due care and skill. The court further determined that the *Workers Compensation Act* did not preclude Dr. Gunther from pursuing common law damages for his injuries.

The appeal was allowed, and the orders of the lower court were set aside and substituted with new orders.

Orders

Orders of the court

Appeal allowed - orders made

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Rooty Hill Medical Centre v Gunther [2002] NSWCA 60
FILE NUMBER(S):	CA 41026/00
HEARING DATE(S):	25 February 2002
JUDGMENT DATE:	11 March 2002
PARTIES :	Rooty Hill Medical Centre Pty Limited & Anor v Michael Gunther
JUDGMENT OF:	Mason P at 1; Handley JA at 2; Hodgson JA at 36

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 1377/99
LOWER COURT JUDICIAL OFFICER :	Christie DCJ

COUNSEL:	Appellants - M J Windsor Respondent - S Norton SC/A P Healey
SOLICITORS:	Appellants - David Ian Brown, Sydney Respondent - Brydens Law Office, Liverpool
CATCHWORDS:	VICARIOUS LIABILITY - master and servant relationship - non-delegable duty - DAMAGES - Workers Compensation Act - lump sum compensation - future weekly compensation
LEGISLATION CITED:	Workers Compensation Act 1987 (NSW) Employees Liability Act 1991 Medical Practice Act 1992
CASES CITED:	Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 Commercial Union Assurance Company of Australia v Ferrcom Pty Limited (1991) 22 NSWLR 389 Smith v Chadwick (1884) 9 App Cas 187 Kondis v The State Transport Authority (1984) 154 CLR 672 Kornjaca v Steel Mains Pty Ltd [1974] 1 NSWLR 343 Hood Constructions Pty Limited v Nicholas (1987) 9 NSWLR 60 Transfield Pty Limited v Mastrioanni (1998) 20 NSW CCR 193 (CA) Franklins Self Service Pty Limited v Wyber (1999) 48 NSWLR 249
DECISION:	Appeal allowed - orders made